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ELCAllowedNot stated in the judgment (Mombasa ELC Suit filed 13th July 2016)· [2023] KEELC 951 (KLR)

Muhiddin & another v Karama & another (Environment & Land Case 190 of 2016) [2023] KEELC 951 (KLR)

Environment and Land Court
14 February 2023
15,933 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~64 min to read original · ~4 min brief

The bottom line

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A Mombasa court confirmed a neighbour's building encroached on another plot, cancelled an irregularly amended title, and ordered demolition and payment of damages.

What this practically means

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Executive summary

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The 1st and 2nd Plaintiffs, registered owners of Mombasa/Block XVI/891 at Majengo, Mombasa, sued the 1st Defendant (registered owner of the adjacent Mombasa/Block XVI/883) and the 2nd Defendant (the approval authority), alleging that the 1st Defendant's apartment construction encroached five metres (0.0045 Ha) onto their parcel, and that during the pendency of the suit the 1st Defendant procured an irregular amendment of the Registry Index Map and re-issuance of her title increasing her land and diminishing theirs. Both parties' surveyors confirmed the encroachment, which the court traced to the 1992 sub-division of the Majengo 'houses without land' tenure based on house sizes. The court held that the trespass was proved and actionable per se; that the Land Registrar acted ultra vires in altering the RIM and cancelling and re-issuing the title, since no statutory provision conferred those powers - rectification under Section 79 of the Land Registration Act is limited to errors not materially affecting proprietors' interests, and cancellation of registration is a court power under Section 80(1) - and that the process breached Section 19(2) by proceeding without hearing the Plaintiffs, violating their Article 40 property rights. The RIM amendment and new title were declared null and void and cancelled. Judgment was entered for the Plaintiffs with declarations of ownership and trespass, a 90-day demolition order under Section 152E of the Land Act, a permanent injunction, general damages of Kshs 1,050,000.00 and costs against both Defendants.

Key legal issues

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01

Whether the 1st and 2nd Defendants encroached and trespassed onto the Plaintiffs' parcel Mombasa/Block XVI/891

Holding

Yes - both the Plaintiffs' survey (Philomu Mapping Services, 6th November 2015) and the Defendants' own surveyor (Edward Kiguru, 5th November 2015) confirmed encroachment of five metres totalling 0.0045 Ha.

Reasoning

The court relied on two independent survey reports, including the Defendants' own private licensed surveyor's report, both of which confirmed an encroachment of five metres on the eastern side of the Plaintiffs' parcel. The District Surveyor's letter of 19th November 2015 confirming beacons intact did not displace these findings. Trespass being actionable per se, the encroachment established liability.

p. 20
02

Whether the Land Registrar had legal mandate to alter the RIM, cancel the 1st Defendant's title and re-issue a new title

Holding

No - the Registrar acted ultra vires; the alteration of the RIM and re-issuance of the title were null and void.

Reasoning

The court examined Sections 12, 13, 14, 18, 19, 20 and 79 of the Land Registration Act and found none conferred power on the Registrar to alter the RIM or cancel a title. Rectification powers under Section 79 are limited to errors not materially affecting a proprietor's interest; cancellation of registration is a power for the Court under Section 80(1). The process also proceeded without hearing the Plaintiffs contrary to Section 19(2), breaching their Article 40 property rights.

p. 24
03

What remedies the Plaintiffs are entitled to

Holding

Declaration of ownership, declaration of trespass, demolition order, permanent injunction, general damages of Kshs 1,050,000.00 and costs.

Reasoning

Having proved trespass on a balance of probability, the Plaintiffs were entitled to a permanent injunction as the suit was heard on the merits. General damages were assessed with reference to precedent fixing the measure of damages for trespass as the value of diminution or restoration cost, and taking into account the trespass continuing from 2015.

Legal principles established

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  • The Land Registrar has no power to alter the Registry Index Map or cancel and re-issue title deeds; such powers vest in the Surveyor and the Court respectively.
  • Trespass to land is actionable per se and no proof of damage is necessary to award general damages.
  • Rectification processes affecting registered land conducted during the pendency of proceedings and without hearing all registered owners are irregular and contrary to natural justice.

Court orders

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  1. 1.Judgment entered in favour of the 1st and 2nd Plaintiffs as prayed and against the 1st and 2nd Defendants jointly and severally
  2. 2.Declaration that the 1st and 2nd Plaintiffs are the legal and registered owners of Mombasa/Block XVI/891 measuring 0.0282 Ha
  3. 3.Declaration that the Defendants unlawfully, illegally and wrongly trespassed on Mombasa/Block XVI/891 by an area measuring 0.0045 Ha
  4. 4.Order under Section 152E of the Land Act that the Defendants within ninety (90) days demolish any structures constructed on the Plaintiffs' parcel, in default the Plaintiffs be at liberty to do so at the Defendants' cost
  5. 5.Declaration that the amendment of the Registry Index Map (RIM) and issuance of the new title deed in respect of Mombasa/Block XVI/883 was unlawful, illegal and irregular, and the same cancelled and revoked under Sections 80(1) and (2) of the Land Registration Act
  6. 6.Permanent Injunction restraining the Defendants, their agents, servants and relatives from trespassing, encroaching onto the Suit Parcels or continuing construction thereon
  7. 7.General damages of Kshs 1,050,000.00 awarded to the Plaintiffs for trespass and unlawful encroachment
  8. 8.Costs of the Suit awarded to the Plaintiffs, to be borne by the 1st and 2nd Defendants
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) Constitution / ELC Act) - not expressly cited in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Muhiddin & another v Karama & another (Environment & Land Case 190 of 2016) [2023] KEELC 951 (KLR)", Case Analysis (2023). Not stated in the judgment (Mombasa ELC Suit filed 13th July 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/951/eng@2023-02-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.